Academic journal article Asian Social Science

An Overview of the Principles of Jurisprudence Vis-A-Vis Legal Maxim

Academic journal article Asian Social Science

An Overview of the Principles of Jurisprudence Vis-A-Vis Legal Maxim

Article excerpt

Abstract

The Principles of Jurisprudence (Usul al-Fiqh) is a well-known science in the field of Shari'ah. Almost all institutions in Malaysia offering Islamic Studies in the field of Shari'ah make The Principles of Jurisprudence as compulsory course that must be taken by each candidate. This is due to the Principles of Jurisprudence dealing with crucial matters such as al-Dalil al-Ijmali (Comprehensive Proof), istinbat (derivation of rulings from nas (text) and debates related to ijtihad (the exertion of the utmost effort by a trained jurist). This study using both descriptive and analytical methods concludes that the Science of the Principles of Jurisprudence is extremely important for it equip the researcher with a clearer and deeper understanding of the Arabic speech rather than its linguistic sense and superficial meaning. Hence, the Principles of Jurisprudence is an absolute requirement for proper understanding of the Shari'ah, hence, derivation of rulings.

Keywords: Islamic jurisprudence, law, rulings principles, derivation, purposes of law and method

(ProQuest: ... denotes non-US-ASCII text omitted.)

1. Introduction

In discussing the principles of jurisprudence scholars and writers, normally, begin with discussion of the individual component elements of the term separately, meaning to say principles, usul and fiqh, only then they attempt defining its collective meaning in a terminological sense. Due to the limit of space, this article will focus on elaboration of the meaning Principles of Jurisprudence on its own as an appellation of specific disciplines of Shari 'ah related science.

Looking through the classic books one would not be able to find any specific definition for the usul al-fiqh. They contained only the meaning of its component elements usul and fiqh the former with the connotation of principle and the latter with jurisprudence. The reason for not defining the terms collectively as an appellation for specific sciences can probably be due its consideration by the classic scholars not as a separate scientific discipline of Islamic Jurisprudence. Therefore, we are obliged to refer to the books of contemporary or modem scholars in order to define the term usul al-fiqh collectively, in other words, to define it in terminological sense. Apparently, they seem not to have relied in their definition on any turath (classic) books except when defining the word usul (principles) and al-fiqh (jurisprudence) individually. Thus, it could be said that the definition of the usul al-fiqh in relative sense is the innovation of the contemporary scholars. From the definition of the contemporary scholars two definitions are selected and discussed as follow:

1) Al-Jilani Al-Mariniyy's Definition

Al-Jilani (2004) defines it as hukm kulliyy (universal ruling) based on which the periphery branches) of fiqh (jurisprudence) are constmcted and which are expressed in general and concise phrases and independent of any specific situation.

2) Ayman 'Abd Al-Hamid Al-Badarayn's Definition

However, Ayman (2006) defines it as hukm kulliyy expressed in precise expressions by mean of which one is able to derive rulings from al-adillah (evidences) and to undertake reasoning, istidlal using certain methods, and to know the required conditions of the mustafid (jurist).

2. Commentary on the Definitions

The first definition is not comprehensive, because, some parts of fiqh ruling can be categorised as kulliyy (universal) too, for examples, the principle of al-darar yuzal (harm must be eliminated), contains a lot of fum' al-fiqh (branches of jurisprudence), expressed in general phrases and are not confined to any specific situation, and yet it is not considered as Principles of Jurisprudence.

The second definition is more precise and comprehensive, for it includes all related features of generality and avoids any features contrary to its comprehensiveness by not excluding any relevant subjects in the discussion of Principles of Jurisprudence which comprises of:

a) al-Dala 'il

b) Istidlal

c) Mujtahid

These all subjects' matter of the science of Principles of Jurisprudence enjoys the privilege of parallel mention in the definition given in jurists' books. …

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